Retired SC judge Abhay S Oka at Idea Exchange: ‘It’s been 75 years of the Constitution and we are still not doing our duty of protecting the environment’

Aamir Khan: How can environmental pollution be nipped in the bud? Can you suggest some safeguards?

It is about the approach. It has been 75 years of the Constitution and we are still not doing our duty of protecting the environment. Once every citizen realises it is their duty to improve and conserve the environment, things will change. Otherwise today the responsibility is confined to some activists who try to raise issues and go to court.

Aamir Khan: Supreme Court Justice BV Nagarathna recently spoke about judgments being overturned and said that judgments are written in ink, not in sand, and should not be “tossed out” by subsequent Benches merely because the judges who authored them have retired or changed. What is your opinion since some of your judgments have also been overturned?

There are two different aspects. When the Supreme Court delivers a judgment, history tells us that the law does undergo a change. For example, the case of A K Gopalan vs State of Madras (this was a landmark Indian Supreme Court ruling challenging preventive detention under the Preventive Detention Act) in 1950.

We went to the other extreme in Maneka Gandhi’s case in 1978 (revolutionised Indian constitutional law, establishing that the “procedure established by law” in Article 21 or the Right to Life and Liberty must be “just, fair, and reasonable,” not arbitrary). Here the Supreme Court actually made progress in laws relating to liberty.

ON OVERTURNING JUDGMENTS | The SC established the ‘basic structure doctrine,’ which says Parliament has some power to amend but cannot amend the fundamental features of the Constitution. You can’t get rid of it because you don’t like it

What Justice Nagarathna meant, according to me, was that if there is a judgment by the Supreme Court, it can be overturned only with methods known to the law. Perhaps, she referred to the Vanashakti (on environmental clearances) case. Perhaps she was referring to the fact that since it was a review by a two-judge Bench, could it be taken up by a Bench of three judges, as if it was an appeal? But it can’t be an absolute proposition that the judgment that you once delivered must remain static.

One more historic example is of the Golaknath case (1967) in which a landmark ruling was passed, which held that Parliament cannot amend Fundamental Rights in Part III of the Constitution. But later on in the Kesavananda Bharati case in 1973, the Supreme Court established the “basic structure doctrine,” which holds that Parliament has some power to amend but cannot amend the fundamental features of the Constitution. The law can be transformed with time but it can’t be that you get rid of it because you don’t like a judgment.

Aamir Khan: During your farewell organised by the Supreme Court Bar Association (SCBA), you mentioned that the Supreme Court (SC) is heavily Chief Justice-centric. Can this be democratised?

We must follow the models of our High Courts. In the High Court, all major decisions are taken by a committee of three or five judges known as the administrative committee. In some High Courts, there are two administrative committees. The important decisions are presented before the full House. That is how the decision-making process on the administrative side takes place. In fact, in a state like Karnataka, even the transfer of the district judge goes before the full House after the administrative committee decides. But in the Supreme Court, many administrative decisions are made by the Chief Justice alone.

Second, the High Court has a fixed roster. In the Supreme Court there is no roster, only subjects. In fact, more than one Bench has the same subjects. And, therefore, after a new matter is filed, the question of discretion comes up. In the High Court system, there is no scope for manual intervention. As per the roster notification, the subject will go only to a particular Bench.

Retired Supreme Court judge Abhay S Oka. (Express photo by Abhinav Saha)

Liz Mathew: We have seen legal action being sought against celebrities for their comments that may hurt sentiments of a particular community, the latest case being actor Ranveer Singh (He imitated a ritual scene from Kantara: Chapter 1, referring to the ‘Daiva’ as a ‘female ghost.’) Society itself is becoming extra sensitive, especially when it comes to religious idols. Should judges discourage such cases and impose a fine?

My view is completely realistic and constitutional. The court’s approach should be whether any offence is attracted (assuming that allegations are correct) or not attracted (then it is the duty of the court to quash it). On the issue of quashing the petition, the court has to see if a person’s freedom of speech and expression is infringed upon. The judges may not like a particular utterance but that does not mean they should not grant relief in that case. One has to strictly examine the case according to the Constitution and the law.

Vineet Bhalla: In the Imran Pratapgarhi vs the State of Gujarat case, you quashed an FIR filed by the Gujarat police against him for a social media post of him reciting an Urdu poem. It was alleged the poem promoted enmity between different communities under various sections of the Bharatiya Nyaya Sanhita (BNS). Similarly in the case of Javed Ahmed Hazam, a Kashmiri professor working at Maharashtra’s Kolhapur College, a criminal case was filed for a WhatsApp status that called August 5 a “Black Day for Jammu and Kashmir.” In both these judgments, you had written that legitimate dissent should not be suppressed and a reasonable person’s standard should be used, not one of a vacillating mind. Why do we then still see the Supreme Court being polyvocal on fundamental rights?

A similar question was asked of me on why the High Court is not following some judgments. My answer is simple. If there is a binding precedent of the Supreme Court, it has to be followed. And the same goes for the Supreme Court. Ultimately, it is bound by the view taken by a coordinated Bench; it is that simple. But the concern you have raised is correct. Different Benches cannot have different views. The question is whether the complaint constitutes an offence or not. That should be the test.

Aamir Khan: What is your opinion on social media guidelines when it comes to comedians, what they can speak or joke about. Don’t you think they violate the right to freedom of expression?

I have said in one of my judgments that we have the right to live a dignified and meaningful life. If there are no comedians and no art and literature, we can’t lead that life. Article 21 gives us the right to. Even if such guidelines are made, they will have to be tested on the basis of constitutional principles. Moreover, the talk is about framing guidelines for controlling social media. I don’t think there is any talk about controlling comedians. Personally, I feel whatever is there on social media is quickly forgotten too.

ON TAKING UP JOBS POST RETIREMENT | My personal view is that after serving as judge of the Supreme Court, I should not do any work which involves adjudication like arbitration. That’s why, I am doing all consultation work and teaching

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Vineet Bhalla: You were always known as an independent judge. When you were serving as a judge, did you face any pressure from the government or any other stakeholder? What is your view on judges taking post-retirement appointments?

Personally, I have never faced any pressure. On taking up post-retirement appointments, my personal view is that after serving as judge of the Supreme Court, I should not do any work which involves adjudication like arbitration. That’s why, I am doing all consultation work and teaching in law colleges. But legally speaking, so many enactments provide for appointing a retired Supreme Court judge as chairperson of some tribunal, for example the National Company Law Appellate Tribunal (NCLAT). There are legal provisions which allow a retired Supreme Court judge to occupy office. So, you can’t say that is illegal. The other issue is about the cooling period. I think the late Arun Jaitley had talked about it. It is an idea that should be considered — whether there should be a cooling period, say about three years from the date the judge is admitted to office. Still this debate will continue.

Vineet Upadhyay: If the government had not revoked its mandate on installing the Sanchar Saathi app, would the court have taken suo motu cognisance?

On first principles, if somebody challenges an Act of the government before the court and says that it is violative of Article 21 or Article 19 or any other fundamental right, it is my personal belief that the courts have to interfere.

Retired Supreme Court judge Abhay S Oka. (Express photo by Abhinav Saha)

Jagriti Rai: Sometimes judges make gender-insensitive comments, particularly in district and High courts. Do you believe that the reason lies in the gender disparity in the judiciary itself?

Let us talk about the judiciary in trial and district courts. Practically in all states — there may be some exceptions — data of the last five to six years show that if you are appointed as civil judges, your entry point level is at the age of 26 and 27. That’s why in almost all states now, more than 50 per cent of the newly-appointed judges are women. That’s a big change over the last 10 years. Then if you see the rules regarding recruitment to the district and civilian courts, in most of the states there is a reservation.

Things are also changing at law schools. My experience is that in moot court competitions, the winners are mostly girls. It’s a matter of time that things will change. Recently, there was an event at the Munjal School of Law and Professor Faizan Mustafa said there has to be diversity in the Supreme Court but it cannot be by compromising merit. It’s a gradual process. For example, the Bombay High Court has more than 10 women judges. It’s a matter of time.

Manas Srivastava: A lot of students prepare for the judiciary examination. Time and again, the Supreme Court has insisted upon the three-year minimum legal practice requirement for entry level civil judges. Your views?

There was a report of the committee, which I think suggested this. The reason is that it was possible for a fresh law graduate, who may be 23 years old, to get into the judiciary at 25. But they face problems because they have not seen the court in action, proceedings or how the judge and lawyers conduct themselves. It was felt that teaching in a judicial academy for a year would help.

ON GENDER PARITY IN JUDICIARY | Practically in all states, data of the last six years show that if you are appointed as civil judges, your entry level is at the age of 26 and 27. That’s why in almost all states now, more than 50 per cent of new judges are women

Uma Vishnu: Have you seen a generational shift among students at law colleges in terms of their approach, how ready are they for litigation, for the grind, for a career in the judiciary?

Every time I go to law colleges, I encourage them to join traditional legal practice and the judiciary as well. Even if you don’t want a long waiting period, joining is a good option because the salary packages are reasonable. I am told that at entry level, a civil judge gets more than what is paid to IPS and IAS officers. But, of course, there is a shift in the sense that many students want to do something different, they want to join firms or work in the corporate sector as law officers. In terms of knowledge of law and in terms of capacity to understand law, they are far superior than my generation of law students because the concept of legal education underwent change in my days.

Remuneration is an issue. Not every senior lawyer pays remuneration. But there are good seniors, too, who not only pay but give work also. Today’s younger generation gets worried about this period of two to three years when they begin practice. So I have been talking to law schools and the Bar Council too. Everybody can’t survive without earning. Somebody from a reasonably earning family or lawyers’ family can survive. But what about others? Some kind of a payment can be made like a sustenance allowance for junior lawyers, particular for those who come from that background or don’t have funds.

Uma Vishnu: There are children who go to elite schools, then come to elite law schools. How connected are they to social reality?

Some of the law schools are really good. They impart quality education, though this criticism is there. The students I have seen from local areas also are equally intelligent. I don’t think there is any major difference. I don’t think students from law colleges in taluka and district levels are inferior to those from law schools which charge high fees. Maybe students from elite law schools will have an advantage in terms of getting jobs in the corporate sector. But when it comes to traditional legal practice, there is no difference between a student from a regular law college and elite law schools.

Ananthakrishnan G: You were in office when the Yashwant Varma case happened (A large amount of burnt cash was found in the official residence of Justice Yashwant Varma when he was a judge in the Delhi High Court). You were a part of the Collegium. Was there a difference of opinion on whether the evidence should have been approved or not?

Two things I must say. I was part of the first five at that time. So, I would like to avoid commenting upon it. It is not proper. Now it is before the committee constituted by the Parliament. Following the legal process that committee has, I think, one sitting Supreme Court judge, one Chief Justice and one leading lawyer from Karnataka.

Ananthakrishnan G: Would it be wrong for a person who interprets the Constitution to draw inspiration from something beyond, say divinity?

Secularism does not mean that everybody should become atheist. In fact, the Constitution, if you go by Article 25 and 26, allows people to keep their faith and follow a religion. Therefore, essential religious practices are protected. But I don’t think the approach of a judge who may be a non-believer, or a judge who is a believer, can be different. And if you study the rulings of judges on liberty issues, you’ll be able to support what I have said, that it hardly matters whether a judge is believer or non-believer.

Ananthakrishnan G: Judicial review has been spoken of as a basic structure of the Constitution. So is secularism. In case of a conflict between these two basic structures, what do you think should prevail?

It’s a hypothetical question. Ultimately the legality and constitutionality of the Act have to be tested on the basis of fundamentals, whether it violates any fundamental right, whether it is in violation of any constitutional provision. So if it is proved that it is violative of say Article 25 or Article 26, it has to be struck down. I don’t think such conflict arises there.